Argument Against My Conviction of
'Collecting Multiple No Tents During The Day Bylaw Tickets'

File No: 145835-1 Victoria Law Courts

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HISTORY AND OVERVIEW

[1] On THURSDAY, FEBRUARY 5TH, 2009, I and my co-appellant,
DAVID SHEBIB, began a campaign to have the Corporation of the City of Victoria corrected in its interpretation and application
of the recently found Adams ruling. The City,
that day, officiated a Bylaw restricting the, newly Constitutionally-held,
right for homeless people to erect temporary abodes, to only serve nighttime
hours.

[2] On each of the following four days we were issued Bylaw
tickets for violating the 'no tents during the day' Bylaw. Getting
arrested after the fourth one on MONDAY, FEBRUARY 9TH, 2009.

[3] We were convicted of the offense on FEBRUARY 12TH, 2009.
Sentenced on March 5th, 2009.

[4] On MARCH 24TH, 2009, David Shebib and myself,
both applied to appeal. Him, by trial de novo and myself,
conventionally.

[5] On MAY 27TH, 2009, a Judge granted the de novo so David
could enter new evidence specifically regarding the daytime shelter conditions
and I was told I would still be able to argue Contempt.

[6] On OCTOBER 14TH, 2009, the City’s lawyer admitted the
City did not contest the absence of emergency shelter beds during the day.
Subsequently, on NOVEMBER 25TH, 2009, this appeal was restyled as a
conventional appeal with the added allowance of submitting any new evidence
regarding daytime shelter. The City, then, again changed its position, getting
affidavits suggesting the existence of emergency shelter beds during the day. A
redundant position, as the City's statistics of a maximum 281 available shelter
beds (page 15, exhibit A) vs. 1242 homeless/unstably housed people (page 7,
exhibit A) does not change whether there are no emergency shelter beds
available during the day or if there are 30 emergency beds available during the
day.

[7] On DECEMBER 9TH, 2009, the Appeal's Court of BC ruled on
the City's appeal of the Adams ruling, finding
“no legal basis to overturn the original conclusion”, excepting the inclusion,
at the City's and its interveners behest, that the ruling was only determined
for nighttime erection of temporary abodes. Leaving the right
to erect temporary abodes during daytime to be determined separately.Forcing an alteration from the primary
argument in my original Notice to Appeal, that the City was in Contempt of the
BC Supreme Court ruling, to a Charter Challenge to determine if government can
lawfully restrict the erection of temporary abodes, for those who’ve not the
means or opportunities to secure it otherwise, to sleep during daylight hours,
sans a section 1 exemption.

VIOLATION OF SECTION 7

[8] According to the REPORT OF THE GAP ANALYSIS TEAM from
the Mayor’s Task Force on Breaking the Cycle of Mental Illness, Addictions and
Homelessness, 2007 survey (exhibit A, page 7), there are 1242 homeless and
unstably housed people in Victoria.

[9] Also, according to the same report (page 15), there are
141 permanent emergency shelter beds with an additional 30 emergency youth mats
that are provided through the Out of the Rain Shelter during the colder months.
When the Extreme Weather Protocol is activated, there are an additional 110
mats available. Bringing the total of emergency shelter beds,
during extreme weather, to 281.

[10] Pending a more current survey of the numbers of
emergency shelter beds and homeless (and unstably housed) people, the Gap
Analysis Team, from their 2007 report (exhibit A, page 10),

“recommends that planning for
housing and supports should assume 1,500 people require housing immediately,
with a growth factor ranging up to 30 per cent per annum for the first five
years…”,

Presuming, in the least, that the homeless
population has risen since.

[11] As of FEBRUARY 5TH, 2009, the City has been enforcing a
prohibition of erecting temporary abodes during the day (generally between 7:00
AM and 7:00 PM, though altered according to the longer days of summer). Section
16A(2) of the City of Victoria Parks Regulation Bylaw No. 07-059
reads as thus,

“16(2) A person must not place, secure, erect, use, or maintain in
place, in a park, a structure, improvement or overhead shelter, including a
tent, lean-to, or other form of overhead shelter constructed from a tarpaulin,
plastic, cardboard or other rigid or non-rigid material:

(a)subject
to sub-section (b), except between the hours of 7:00 o’clock p.m. of one day
and 7:00 o’clock a.m. of the next day,

(b)at
any time, in a playground, sports field, footpath, a road within a park, Bastion Square, or
any area within a park that has been designated for an event or activity under
a valid and subsisting permit issued under the authority of this Bylaw.”

[12] Until the City can guarantee that each homeless person
can be afforded the option of getting sleep enough to maintain their health it
is not Constitutional to prevent them from, conscientiously, securing it for
themselves. Period. It is not reasonable for the City
to presume over a 1000 people to adjust their schedules to include a daily
regiment of only sleeping when it is dark.

[13] It is a deprivation of liberty to not be trusted to act
conscientiously in the maintaining of one's survival. A deprivation of liberty
that cannot but be a deprivation of life, as the energy stolen from being
denied the practicality and efficiency of setting up a tent, for survival's
sake, is going to keeping one's self awake long enough to find sleep within
accordance to the law. Which leads to a resentment of the
law. Which leads to a cycle of discontent in an environment where the
only freedom is the freedom you must buy, subsequently making an untenable
situation for any who've been so cursed by God as to be too smart to use money.

[14] There is no more intimidating issue to have before the
judiciary. To recognize the right to sleep conscientiously on government owned
public access properties effectively breaks a monopoly on sleep that has been
relied on and built upon since the inception of residential property taxes.
Many Canadians, seeing for the first time, their right to sleep for free, will
experiment with that option, potentially exasperating the housing market
mortally.

[15] So, the question being asked here is- Is it in the best
interest of Canada to maintain the housing market at the cost of depriving
those, without means or opportunity to provide for themselves otherwise, the
efficiency of having the right to, conscientiously, erect temporary abodes
freely, at any hour?

FUNDAMENTAL JUSTICE

[16] It is not legal to arbitrarily deprive people of life.
Sleep is necessary to live.

[17] To arbitrarily deprive people of sleep removes the
ability for a society to be free.

[16] Given Court agreement with this appeal, it would remain
the City’s prerogative to manage its public spaces within Constitutional
parameters. There’ve been many proposals with the idea of placating the City’s
fears. Codes of Conduct, 24/7 police cameras, many locations of small groups,
one place big enough for all the different routines to have their own corners,
option of private residences applying for tent-zoning if they would guarantee
basic management, etc… With ‘zones’ the City’s parks could remain tent-free.

[17] The creation of ‘tent-zones’ need not be a ‘positive
obligation’. It has been through the restrictions and policies of the City that
has had the issue ‘put off’, as land that would have been appropriate for
‘tent-zones’ has been developed for profit. Any provision of assistance from
the City could be viewed as remedy.

[18] It would also behoove the City to assist in a national
‘awareness raising’ campaign so as to let all those who exist in poverty know they
have the right wherever they are in Canada and need not over-whelm the first
City to sanction public tenting.

[19] I want to be compensated for my temporary abode (if
repayment is in the original construction material of cardboard it need come
with labourers) and a genuine and supremely public apology from mayor and
council.